Exeter 1 A Ltd. Partnership v. N.L.R.B., 78-2048

• Decision Date: 15 June 1979
• Docket Number: No. 78-2048,78-2048
• Citation: 596 F.2d 1280
• Parties: 101 L.R.R.M. (BNA) 2649, 86 Lab.Cas. P 11,364 EXETER 1-A LIMITED PARTNERSHIP, d/b/a Sheraton Inn-Airport, Petitioner, Cross-Respondent, v. The NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1280

596 F.2d 1280

101 L.R.R.M. (BNA) 2649, 86 Lab.Cas. P 11,364

EXETER 1-A LIMITED PARTNERSHIP, d/b/a Sheraton Inn-Airport, Petitioner, Cross-Respondent, v. The NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

No. 78-2048.

United States Court of Appeals, Fifth Circuit.

June 15, 1979.

Branch & Swann, John D. Marshall, David J. Zakin, Atlanta, Ga., for petitioner, cross-respondent.

Elliott Moore, Deputy Associate Gen. Counsel, John S. Irving, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Act. Associate Gen. Counsel, John G. Elligers, Frederick Havard, N.L.R.B., Washington, D.C., Curtis L. Mack, Regional Director, N.L.R.B., Region 10, Atlanta, Ga., for respondent, cross-petitioner.

Petition for Review and Cross Application for Enforcement of An Order of the National Labor Relations Board.

Before WISDOM, CLARK and FAY, Circuit Judges.

FAY, Circuit Judge:

The question on appeal is whether there was substantial evidence in the record to support the National Labor Relations Board's decision that the union's ¹ disruptive conduct did not destroy the laboratory conditions considered necessary by the Board to hold a fair election. The employer, a hotel, petitions this Court to set aside the election and order that a new election be held. The Board cross-petitions for enforcement of its order requiring the hotel to bargain with the union as duly elected representative of the hotel's employees. Finding no substantial evidence to support the Board's conclusion, we deny enforcement of the Board's order to bargain and we set aside the election and order that another election be held.

The union misconduct which taints this election occurred on three different occasions. We note that on each of these occasions, the parties involved were officials and representatives of the union. Compare N.L.R.B. v. White Knight Manufacturing Co., 474 F.2d 1064, 1067 n. 3 (5th Cir. 1973) ("absence of Union agency is . . . a factor which can properly be considered").

On October 18, 1976, the employer's general manager, Stephen A. Brown, was told that Robert Lett, secretary-treasurer of union was in the lobby bar soliciting employees while those employees were at work. Brown went to the lobby and requested that Lett stop. In response, Lett became very belligerent and in a loud tone of voice said that he would come on the property any "damn time he pleased", and that Brown would have to call the police to get him out. He also threatened general manager Brown and engaged in a lot of loud cursing.

This confrontation took place in the middle of the hotel's main lobby, a relatively short distance to where employees were working both in the lobby bar and at the front desk. Security was called to the disturbance. The antagonism of Lett was such that bell captain Richard Mosley remarked to Brown afterward that the only thought he had was to run. Lett finally left through a side door by the gift shop.

After this incident, the business manager of the union, agreed to keep Lett off the property until after the scheduled election on November 12, 1976. Lett later approached a bartender in the lobby bar and indicated to her that he didn't have anything to do and that he didn't care if Brown had him arrested.

The second incident occurred on October 26, 1976, when John McCarthy, an organizer for the union, came into the main lounge of the hotel and accosted one of the cocktail waitresses, Sheridan Pierce. McCarthy called her over and started a discussion about how she felt about the union, knowing her to be against the union's presence in the hotel. Though she would walk away, McCarthy persisted by calling to her in a loud voice and on at least two occasions he grabbed her arm to compel her to stay and listen. After a time, Ms. Pierce asked the beverage manager, Hector Bouillerce, to stop McCarthy. Bouillerce sat down next to McCarthy at the bar. What ensued was a very loud and animated conversation culminating in McCarthy saying: "I am going to get you. Your ass is mine. Come the 12th, I'm going to kick your ass. You and I is going to be in a fight." This threat was heard by Harold L. Barber, a hotel security officer, by Sheridan Pierce, and by Ralph Baugher, the bartender. It is also probable that the incident involving Bouillerce and McCarthy was overheard by from three to five other cocktail waitresses, since McCarthy was sitting no more than two feet away from one of only two bar stations where cocktail waitresses pick up their drink orders.

Subsequently, McCarthy left the lounge and about one and one-half hours later was found slumped in a chair in the lobby. He was arrested by East Point Georgia police and charged with public drunkenness.

To complete this triumvirate of hostile episodes, on November 8, 1976, four days before the election, four union representatives, including Lett, came to the hotel and were noticed drinking in the bar in the main lounge. Beverage manager Bouillerce, along with security officer G. O. Smith, approached Mr. Lett and asked Lett to leave because he had previously been advised to stay off the property. At this point, one of the representatives, Mr. Reynolds, identified himself as a lawyer and stated that Lett had nothing to say and that they had a right to be there anytime they wanted. Bouillerce and Smith asked the group to step out into the lobby. They proceeded to the lobby and stopped at a point near the front desk. The group was again asked to leave, but Reynolds insisted that they did not have to leave the premises. Bouillerce then called the East Point police. When the police arrived and asked the group to leave, Reynolds became agitated and a heated discussion ensued between Reynolds and the police. The result of that argument was Reynolds' and Lett's arrest. Two employees were working at the front desk during the argument, and the lounge had a normal complement of employees, at least one bartender and three to six cocktail waitresses. ² At least these employees were exposed to the confrontation.

The election was held in November 12, 1976. Of the 156 employees who voted, 81 voted for the union, 62 voted against, and there were 13 challenged ballots. Approximately 40 employees failed to vote.

It appears from an examination of the record, the briefs and the orders below that the facts are not in substantial dispute. The problem arises, however, in determining what consequences must attach to these circumstances. With due deference to the Board's findings, NLRB v. Sumter Plywood Corp., 535 F.2d 917 (5th Cir. 1976); Home Town Foods, Inc. v. NLRB, 416 F.2d 392 (5th Cir. 1969), we must nevertheless reject the Board's decision to uphold the election.

In order to be sufficient to set aside an election, "not only must conduct be coercive, but it must be so related to the election as to have a probable effect upon the employees' actions at the polls." NLRB v. Zelrich Co., 344 F.2d 1011, 1015 (5th Cir. 1965). Accord, NLRB v. White Knight Manufacturing Co., 474 F.2d 1064 (5th Cir. 1973). In regard to the second factor, the determination of effect on the employees' vote, the words of Judge Clark are particularly pertinent:

We are aware that, in many instances, assessing the effect of a particular action on the electorate could...